OPM Leave Administration

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Upon learning that his wife was pregnancy and due in early 2008, Chad Wilson told his supervisor that he might need to take leave to care for his newborn if his mother-in-law was unavailable. Wilson was subsequently terminated for dismissing his supervisor's concerns about Wilson''s failure to follow the chain of command regarding a pay issue.

Wilson sued alleging that his termination was in retaliation for exercising FMLA rights. He argued that he engage din FMLA-protected activity by requesting leave to care for his child. The FMLA provides that an employee must "provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave." 29 CFR 825.302(c).

The Fifth Circuit found that Wilson failed to provide adequate notice of the need for FMLA leave. Wilson, the Court observed, " never informed Noble that he intended to take leave, only that he "might" need to take leave and that there was a "possibility" that he would need to take leave." The Court held that these comments were insufficient to make his employer aware that he needed FMLA-qualifying leave.

The Court also found that Wilson failed to notify his employer of the "anticipated timing and duration" of any leave. Wilson conceded that he did not get into any specifics as to who, what, when, or where of the leave. Telling his supervisor that he "might" need to take leave "early in the year after the baby was here" failed to inform the employer of the anticipated timing and duration of the leave, the Court held.

The Court held that Wilson failed to establish that his removal was in retaliation for requesting FMLA leave.

Comment: While employees need not invoke the FMLA by name when requesting leave, they must provide their employer with sufficient information to alert the employer that FMLA leave may be needed. Telling an employer that you "might" or "possibly" may need FMLA leave, even for an FMLA-qualifying reason, is not sufficient. To be a valid request, courts also want more specificity in terms of the timing and duration of the leave. Employees do not invoke the protections of the FMLA by telling your employer that you may need leave at unnknown time in the future. To invoke the FMLA, employees need to provide more specifics, not less, when requesting leave.

On November 19, 2010, the US OPM published proposed regulations governing qualifying exigency military family leave (QE leave). SEe 75 FR 70845-70850 (Nov. 19, 2010), http://www.thefederalregister.com/d.p/2010-11-19-2010-29275, The regulations implement section 565(b)(1) of the National Defense Authorization Act of 2010 (2010 NDAA), which extended QE leave to federal employees covered by Title II of the FMLA. Prior to the 2010 NDAA amendment, QE leave was available to federal employees covered by Title I of the FMLA, but not Title II. See 29 CFR 825.126.

QE leave allows Title II eligible employees to take up to 12 administrative workweeks of leave during any 12-month period for specified qualifying exigencies when the spouse, son, daughter, or parent of the employee is on covered active duty in the Armed Forces or has been notified of an impending call or order to active duty.

The good news is that, with one exception, OPM's proposed regulations on QE leave parallel the DOL's final regulations on the topic, with minor adaptations to make them applicable to civil service employees. See 75 FR at 708461. The one exception involves a statutory change that substitutes "covered active duty" for the existing "active duty" definition. The 2010 NDAA expanded the reach of QE leave to include: (1) active duty in the Armed Forces (not simply reserve duty); and (2) service in a foreign country (not just for contingency operations). The change applies to Titles I and II. The DOL (which enforces Title I) has not issued proposed regulations to address this change.

Like the DOL, OPM allows an agency to require an employee to provide a certification substantiating the need for QE leave. As it has done with other certifications, OPM suggests that agencies use the DOL's WH-384 form for this purpose. However, because the DOL form has not been updated to reflect the availability of QE leave for a covered servicemember's active duty service, OPM suggests that agencies "provide separate instructions regarding the active duty documentation requirements for servicem3embers in a regular component of the Armed Forces. 75 FR at 70847-48.

Comment: The proposed regulations continue OPM's recent trend in issuing regulations that mirror DOL's Title I regulations. If adopted, case law interpreting the DOL Title I QE regulations (which also apply to the private sector) would be persuasive authority for the identical OPM QE regulations. That is a good thing.

I have two quibbles with OPM's proposed regulations. First, for the life of me I can't understand why OPM persists in publishing only the proposed changes. By doing so, the consumer is forced to review two documents: the current regulations and the new proposed regulations. From these two separate documents we are apparently supposed to go back-and-forth until - like a moving cartoon from separate still drawings - we are able to visualize what the new regulations would look like if they were integrated into a single set of regulations. This is an archaic way of displaying regulatory changes, proposed or otherwise. It would be more helpful if OPM integrated the proposed changes into the existing regulatory scheme. The proposed changes could be distinguished by bolding, italics, or underlining the text.

Second, OPM should have created a modified WH-384, or at least offer uniform language that agencies could use to modify the DOL WH-384 to reflect the 2010 NDAA amendments. Instead of actually being helpful, OPM merely suggests that agencies should modify the WH-384 to "provide separate instructions" for active duty documentation requirements. That is simply LAZY. Rather than leaving it to every agency to craft language that they believe addresses the issue, OPM should create uniform language that agencies can insert in the WH-384 until the form is modified by the DOL. The absence of approved, standardized language will likely result in needless litigation as parties challenge the validity of the notice provided by each agency on this issue.

On September 16, 2010, OPM announced that it was encouraging federal agencies to use the new DOL medical certification forms WH-380E (for the employee's own serious health condition) and WH-380F (for the serious health condition of covered family members). OPM explained that it was encouraging the switch to the newer DOL forms because the WH-380 was set to expire on September 30, 2010.

Comment: The announcement constitutes a reversal by the OPM. When the DOL initially issued the revised medical certification forms OPM counseled agencies to continue using the old WH-380. The reason: the DOL was able to revise the medical certification forms to allow employers to secure additional information because the DOL revised the underlying regulations governing the content of medical information that an employer may require from an employee to substantiate the need for FMLA leave. Because OPM did not similarly modify the underlying Title II medical certification content regulations, OPM correctly felt that the use of the new DOL forms would result in an employer securing more medical information than was permitted by OPM regulations.

Agencies that follow the OPM's advice and use the revised DOL forms are taking a risk. OPM has not revised the regulations governing the permissible content of a serious health condition medical certification. As such, existing OPM regulations do not permit an agency to require all of the medical information contained on the revised DOL forms. Again, the new DOL forms allow an employer to secure additional medical information BECAUSE the DOL modified the underlying medical certification content regulations. OPM has not modified its underlying medical certification content regulations. The regulations continue to prohibit an agency from securing medical information other than what is specifically permitted by the Title II regulations. See 5 CFR 630.1207.

It is frankly unclear to me how OPM can counsel agencies to use the new DOL forms when, as OPM initially recognized, such use will result in securing more medical information than is currently permitted by OPM's medical certification content regulations. Moreover, it is highly likely that an agency would not fair well if it denied FMLA leave and/or took disciplinary action because an employee submitted a certification that conformed to the OPM medical certification content regulations, but did not include all of the information on the more expansive new DOL forms.

The expiration of the WH-380 does not justify the use of the new DOL forms until OPM changes its underlying medical certification content regulations. It is unclear what the OPM means when it says that the WH-380 is set to expire. Maybe that means the the DOL has set some sort of expiration date. In any event, since the use of the WH-380 is permissive, not mandatory, the fact that DOL has set an expiration date is not controlling for OPM. Nor does it change the reality that OPM has not changed the underlying medical certification content regulations.

I also understand that OPM has opined that it intends to change its medical certification content regulations to conform with the DOL- which would permit the use of the new DOL forms. It is waiting, however, for the DOL to make some additional changes to the Title I FMLA regulations. OPM's intention to change the medical certification regulations is not, however, a legally valid justification to begin using the new forms now as if the regulation has been changed! The OPM's intention to change the Title II regulations at some unknown point in the future will not be a viable defense to a claim that use of the revised DOL certification forms violates Title II of the FMLA as it, in fact, exists. Agencies are bound by regulations that are in effect, not those that have been proposed, and certainly not those that are merely contemplated.

In addition to violating the content prescriptions of the effective Title II regulations, OPM's guidance places agencies in jeopardy of violating the Rehabilitation Act/ADA. The Rehab Act places restrictions on the medical information that an employer may require an employee to provide. Without the imprimatur of the FMLA, agencies that require Title II employee's to use the new DOL forms may well be found to have required medical information without sufficient business need, thereby violating the ADA/Rehabilitation Act.

Agencies would be better off continuing to use the WH-380 until OPM revises its current medical certification content regulations. Alternatively, agencies should have legal counsel review the new DOL forms against the existing OPMregulations (5 CFR 630.1207) to ensure compliance with the Title II medical certification content prescriptions. Agencies might consider modifying the new DOL forms to take out any questions that appear to exceed the scope of the existing Title II content prescriptions.

Agencies that blindly follow the OPM's advice and adopt the new DOL medical certification forms may be inviting an avalanche of grievances and disability discrimination claims. My advice: proceed with caution!

Chapter 44 of House Bill (H.R. 5136) of the National Defense Authorization Act of 2011modifies the Uniformed Services Employment and Reemployment Rights Act, 38 USC 4303, et. seq., to require all employers (of any size, including local, state, and the federal government) to permit a spouse, son or daughter, or parent of a member of a uniformed service to take up to two workweeks of leave during any 12-month period where a family member has received notification of an impending call or order to active duty in support of a contingency operation. The leave may be taken intermittent or or a reduced leave schedule at the discretion of the employee. Paid leave is available at the discretion of the employer. Otherwise, the leave is unpaid. The employee must provide notice of the need for such leave "as is reasonable and practicable." An employer may require that leave be supported by a certification of entitlement to such leave. A copy of the notice, call, or order is considered sufficient certification. An employee has the right to be restored to the position the employee held prior to taking the leave, or to an equivalent position with equivalent rights and benefits. It is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise rights under the law. It is also illegal to discriminate against someone for opposing unlawful practices. The law would be enforced consistent with USERRA's current structure.

Comment: The Senate version of the 2011 National Defense Authorization Act (S. 3454) does not contain a similar provision. As such, whether the provision survives the House and Senate Conference Committee is anyone's guess. Stay tuned!

Jordan To was employed by US Bank as a Senior Research Clerk. While employed, To joined the Minnesota National Guard. As ordered, To attended Guard training at Fort Benning for approximately three months. He kept his employer informed of his expected return to work. When his return date came, To called his supervisor and informed him that because he was feeling tired, lethargic fatigue-ish he needed a few days off to recuperate and would not be back to work as previously planned. To was told that, to be excused, he would need a doctor's note, which To provided. To provided a doctor's note, which excused his continuing absence from work citing only "illness." As his revised return days approached, To would call his supervisor requesting additional leave because "he was still not feeling well." A second doctor's sought to excuse his continuing absence due to "illness." The pattern continued of more calls to work asking for additional leave because he "was still feeling the same symptoms." Eventually, To remained absent from work but stopped calling his supervisor as required by US Bank policy. US Bank fired To. To sued, alleging violation of the FMLA. US Bank moved for summary judgment.

In awarding summary judgment to US Bank, the court found that To had failed to provide adequate notice of his need for FMLA leave. In the Sixth Circuit, whether an employee provided adequate notice of the need for leave is based on whether the information imparted to the employer is sufficient to reasonably apprise the employer that the need for leave is due to a serious health condition. An employee must explain their need for leave in a way that makes it reasonably plaint that the employee's health condition is serious and that this is why the employee needs to be absent. By informing his employer that he "was felling ill, tired, lethargic, fatigue-ish... and that he needed a few days to recuperate," To failed to reasonably apprise US Bank that his need for leave was due to an FMLA-covered serious health condition. As additional evidence of To's failure to provide adequate notice, the Court also cited the doctor's slips, which simply referenced "illness" as the reason he needed to be absent from work.

The Court also found that US Bank had the right to terminate To for violating company policy requiring him to notify his supervisor, not someone else, of his need for leave. Under US Bank policy, an employee who is absent for two consecutive work days and who fails to report those absences to their immediate supervisor is considered to have abandoned their job. That, the Court found, is what happened in this case. Absent unusual circumstances, the FMLA allows an employer to enforce their usual and customary leave policies and procedures. 29 CFR 825.302(d). The Court found not "unusual circumstances" that prevented To from complying with US Bank's direct reporting requirement.

Comment: To perfect the right to job-protected FMLA leave, employees do not have to invoke the FMLA by name (although they may). Employee's must, however, articulate facts that arguably fit one or more FMLA-covered serious health conditions. Claiming that you are "ill," or "sick," or "fatigued" simply fails that test. Courts have uniformly held that such generic language fails to reasonably alert the employer that the need for leave is due to a "serious" health condition that might be FMLA-qualifying.

Even if To had provided adequate notice of the need for leave, US Bank would have been within its right to deny FMLA leave coverage and terminate him for violating the company's leave reporting policies and procedures. To perfect the right to FMLA leave, employees must provide adequate notice of the need for leave, and abide by their company's leave reporting policies. An employee might be excused both from providing adequate notice and complying with the employer's leave reporting policies if they were unable to do so. That was not the case with To.

The Court in To interpreted the employee notice standards set forth in Title I of the FMLA. The MSPB applies case law interpreting Title I of the FMLA on employee notice to Title II cases under the OPM FMLA regulations. To should, therefore, be instructive on the adequacy of employee notice in Title II cases.

Shauna Saenz was approved for intermittent leave for partial complex epileptic seizures. The letter approving the leave indicated that Saenz needed to request FMLA leave by contacting a third party provider (Hartford) no later than 2 days after each time she took intermittent leave. The letter warned that failure to provide the necessary notice could result in the loss of FMLA protection. Without incident, Saenz exercised her right to intermittent leave 9 times in the ensuring five months. Each time, the letter approving the leave referenced the 2-day n notice requirement. Saenz missed work on December 29-31 and January 3-4.

On December 28, Rhonda Galloway, Saenz's mother, discovered Saenz hallucinating and disoriented. Galloway determined that Saenz could not work that day, and informed Saenz's immediate supervisor. Galloway also informed a higher level supervisor of the need for leave. Galloway took Saenz to the emergency room of the hospital where she worked for treatment. The higher level supervisor personally came and visited Saenz while she was in the emergency room. Gallow secured a court order appointing her to be a guardian of her daughter for purposes of making medical decision. Saenz was subsequently transferred to another health care facility for treatment. She was released three days later. On her release, she stayed with her mother. Galloway called Saenz's immediate supervisor, explained what had happened in the interim, and requested an indeterminate amount of leave. The supervisor reminded Galloway that Saenz was required to request leave through Hartford. Galloway apparently did not call The Hartford. Saenz was subsequently diagnosed with bipolar disorder. Saenz called The Hartford on January 9 regarding her absences of December 29, 30, 31, and January 3 and 4, 2007. The Hospital subsequently terminated her employment due to her non-FMLA approved absences. The letter explained that her absences were not FMLA-approved because she failed to request leave within two days of her hospital discharge as required by the employer's policy.

Saenz sued the hospital alleging violation of the FMLA. The district court awarded summary judgment to the hospital. Saenz appealed to the Fifth Circuit. The Fifth Circuit reversed the decision of the district court. Specifically, the court found that, pursuant to 29 CFR 825.303, Saenz contacted the hospital "as soon as practicable" and provided enough information to hospital staff to alert her employer that she was requesting FMLA leave. The fact that she did not timely contact the third party provider within two days as required by the hospitals' more restrictive policy was not, the court concluded, controlling. In that regard, the FMLA establishes a more relaxed notice requirements, which is all the employee was required to satisfy.

Comment: The decision, in my opinion, correctly determined that, under the circumstances, the employee timely provided adequate notice of the need for FMLA leave "as soon as practicable." The court also correctly determined that, to perfect her request for FMLA leave, the employee need only satisfy the minimum requirements of the FMLA leave, and not the more stringent procedural requirements imposed by the employer's policy.

The decision is based on the pre-2009 revisions to the DOL regulations. The court correctly declined to aply the post-2009 DOL notice regulations retroactively. As revised, the "new" DOL notice regulations provide that, absent unusual circumstance, an employee must abide by an employer's "usual and customary" notice and procedural requirements for requesting unforeseen leave. See 29 CFR 825.303(c). In dicta, the Fifth Circuit observed that, if the new standard applied, the employer "might very well be entitled to summary judgment." Opinion at n. 9. My opinion: If the circumstances of this case are not "unusual," the term has no meaning. On these facts I don't' believe the result would, or should, change.

The lesson: an employee who is incapable of complying with an employer's more stringent "usual and customary"notice procedures may still be entitled to FMLA leave if they satisfy the minimum notice requirements of the FMLA. An employee who fails to adhere to the employer's leave requesting procedures may, however, be subject to discipline for such failure even though FMLA leave was granted.

Just because an employer may have violated an employee's FMLA rights in the past does not mean that the employer's subsequent termination of the employee also violated the FMLA.

Gwendolyn Donald worked for Arby's as an assistant manger. Shortly after being hired she suffered a series of medical problems causing intermittent periods of extreme pain. She was granted FMLA leave for related surgeries. While working the drive-through window, Donald.s cash register was over $4.00. Concerned that his might e evidence of employee theft, the company conducted an investigation, including video surveillance. The surveillance suggested that Donald was ringing folks up at the full amount while recording the transaction in the register as discounted, and pocketing the difference. The suspicion could not be confirmed because the customers could have been handing coupons to Donald, which would explain the discrepancy. The company confronted Donald with its suspicions. When she refused to acknowledge in writing that she was stealing, she was fired.

Donald sued alleging that she was terminated in retaliation for taking FMLA leave in the past. She also claimed that her termination interferences with her right to return to work from intermittent FMLA leave in the future. The Court initially noted that there were substantial questions regarding her FMLA retaliation/interference claims. Such questions would normally defeat the employer's motion for summary judgment. Because, however, the court found that the company established a legitimate, nondiscriminatory reason to end Donald's employment, and that Donald had failed to establish that the reason was pretextual.

The court agreed that being $4.00 over may be evidence of theft. The court also credited the company's investigation, which confirmed the possibility of theft. The company's handbook cited theft as a reason for immediate termination. A demonstrable risk of theft, the court found, is a legitimate reason ro an employer to end that person's employment.

The court rejected the non-theft explanations offered by Donald. The fact that the discrepancy could be explained because the customers could have presented discount coupons failed to diminish the legitimacy of the the company's concerns. The court explained:

There may be other explanations for the discrepancies beyond the, but Plaintiff has offered no reason to believe Plum, Barocko, and Ballance fabricated their concern to cover up their unlawful discrimination. Indeed, whether Plaintiff was actually stealing or not is largely irrelevant, the relevant question is whether the evidence of theft was a sufficient reason and the actual reason for Plaintiff's termination. Plaintiff's evidence does not demonstrate that Defendant made up its reason for the termination, the stated reason was not the real reason, or that the stated reason is insufficient to justify the decision. Nor is there any evidence that the inconvenience associated with her requests for FMLA lave played any role in the decision to end Donald's employment.

Comment: So long as an employer can establish that it had a good faith belief that it took an adverse action against an employee for legitimate, nondiscriminatory reasons, the employer will likely be successful in defeating an FMLA at the summary judgment phase. The employer does not have to prove that its suspicions were, in fact, correct. It need only prove that it held those suspicions in good faith, and acted on those suspicions when it decided to terminate the employee.

To show pretext, an employee will have to demonstrate that the employer did not have a good faith belief that the employee engaged in conduct that could get them terminated. This is not an easy burden. Simply offering innocent, alternative explanations won't do it. Stated differently, the fact that the employer may not be able to prove theft "beyond a reasonable doubt" is not the standard. To defeat an FMLA claim, all the employer need provide is that it had a reasonable, good faith suspicion of theft.

Evidence of innocent, alternative explanations might, however, be used as evidence of a particularly substandard employer investigation. Coupled with some adverse comments incident to the use of FMLA leave in the past, and a short period of time between protected activity and the adverse action, and the employee can start to build a credible argument to survive the employer's inevitable summary judgment motion.

Howard Gipson was employed as a plaint maintenance worker for Vought Aircraft Industries. He also served as the local union president. In late 2004, Gibson underwent triple-bypass heart surgery. He ws granted FMLA leave for the surgery. In October 2005, Gipson was removed as the local union president. Incident to that removal, his successor removed Gipson's personal effects from the union office and placed them in an adjacent lobby with instructions for Gipson to collect them. He did not. His shift supervisor subsequently asked Gipson to remove his effects from the lobby. Gipson did nothing. His supervisor asked him a third time to remove his effects. Gipson replied that it was a union-related matter and that he would not comply without a written directive. His supervisor next gave him a verbal directive to remove his effects, and warned Gipson that failure to do so could result in discipline up to and including discharge. Gipson walked away. He went and saw the company nurse. She told him his blood pressure was slightly elevated. Gipson returned to his station, and told his supervisor he wanted to go home because he was in pain and needed his medicine. Gipson was asked one final time by the HR manager to retrieve his effects. Gipson declined stating that he had a very bad headache. The company terminated Gipson on the spot for insubordination. Gipson sued alleging that his termination was in retaliation for exercising his FMLA rights. The Sixth Circuit disagreed.

The Court found that there was no a casual connection between is exercise of FMLA rights and his termination. The court opined:

As we have stated, an employee may not insulate himself from a pending dismissal by opportunistically invoking the FMLA.

Here, Gipson, the court found, could not demonstrate that his employer would not have dismissed him regardless of his alleged request for FMLA leave. The Court noted Gipson's admission that he flatly disobeyed the direct order of his supervisors, which "is indisputably grounds for termination." The Court also cited the finding of the arbitrator that, in violation of a known work rule, Gipson failed to comply with his supervisor's three requests to move his effects, all of which were issued before Gipson had voiced his medical concerns to anyone. While he was not terminated until after Gipson asked for a medical pass to leave for the day, he had been warned prior to his request that failure to obey a direct order to move his effects would result in discipline, including discharge. According to the Court, "the wheels of termination had already been put into motion before Gipson requested leave." A reasonable jury "could not conclude that it was Gipson's request for a medical pass, rather than Gipson's continuing insubordination, that provoked his firing."

Comment: Invoking FMLA leave does not protect an employee from unrelated discipline that is already in the pipeline. Note that the court considered the discipline to be in the pipeline even though formal discipline had not been proposed or issued. Rather, the court focused on whether the discipline would have occurred regardless of the employee's request for FMLA leave. In practice, the employer can demonstrate that it would have issued discipline notwithstanding the exercise of FMLA rights based on conduct that pre-dated the employee's invoking the need for FMLA leave.

Of course, by opportunistically invoking the FMLA, Gipson forced his employer to to go through the great time and expense of litigating the case before both an arbitrator and through the courts. Many employers would look to settle such a case. While that might not guarantee that Gipson would return to his job, a settlement to avoid the substantial expense of litigation might have allowed Gipson to resign with a neutral recommendation, and with a few dollars in his pocket.

Labor Secretary Hilda Solis announced yesterday that the U.S. Department of Labor will conduct a study next year of how families use FMLA leave, as well as "information on regulatory changes, among other things."

Comment: In the past, DOL studies have been a precursor to regulatory changes. While there is no mandatory format, past FMLA studies have been a combination of surveys of significant FMLA stakeholders combined with public solicitations of comments. Interested parties should take this as a "heads-up" to begin to think about and prepare to address what you like about the current regulatory regime, and what you would like to see changed. The announcement also suggests that the DOL does not intend on making any regulatory changes before the upcoming mid-term elections this November, something of a surprise (at least to me).

The DOL administers Title I of the FMLA, which applies to non-civil service federal employees. Civil service federal employees are covered by Title II of the FMLA, which is administered by the OPM. By statute, OPM is required to craft FMLA regulations that generally follow the DOL's Title I FMLA regulations, with some wiggle room for differences. Moreover, the MSPB and other alphabet enforcement agencies have looked to Title I case law to interpret the often similar Title II OPM FMLA regulations. As such, it is important for agencies, unions, and employees covered by Title II of the FMLA to keep current on Title I FMLA developments.

Charlene Wisbey was employed b y the City of Lincoln, Nebraska as an emergency dispatcher. The position required Wisbey to receive calls for emergency services and dispatch emergency service units on a regular basis. Because of the potential life-saving aspect of her position, the City Expected Wisbey to function accurately while working under considerable pressure and to think and act quickly and calmly in emergency situations.

During January-February, Wisbey used a significant amount of sick leave for an upper respiratory infection, for which she received a letter of warning. To avoid further discipline, the City recommended that Wisbey apply for intermittent FMLA leave, which she did. The medical certification supporting her request for intermittent FMLA leave cited recurring cycles of depression and anxiety that interfered with her sleep, energy level, motivation, and concentration. It also stated that Wisbey was unable to perform the essential functions of her job The certification concluded that Wisbey would need to take time off intermittently over the next 6 months or longer.

Concerned about her ability to perform her job as an emergency dispatcher, the City directed Wisbey to undergo a fitness-for-duty exam (FFD), which she did. The FFD concluded that Wisbey suffered from chronic relapsing depression which intermittently interfered wit her ability to function at full capacity at work, and that she was not fit for duty, especially regarding her ability to concentrate and her ongoing propensity to miss work. The City terminated Wisbey as unfit for duty. Wisbey filed suit alleging violations of the ADA and FMLA.

With respect to the ADA, the Court rejected Wisbey's argument that the City did not have a legitimate, non-discriminatory business necessity to require her to submit to the FFD. Citing a decision of the Second Circuit in Gajda v. Manhattan & Bronx Surface Transit Operating Autho., 396 F.3d 187 (2d Cir. 2005), the Eighth Circuit agreed that representations made in an employee's FMLA medical certification that the employee is unable to perform the functions of his or her position may serve as a legitimate, non-discriminatory basis for employer to require an FFD.

With respect to the FMLA, the Court rejected Wisbey's claim that the City interfered with her FMLA rights, noting that she was never denied FMLA leave. Significantly, quoting prior Eighth Circuit opinions, the Court noted that the FMLA "does not provide leave for leave's sake, but instead provides leave with an expectation an employee will return to work after the leave ends," Throneberry v. McGhee Desha County Hosp., 403 F.3d 972, 978 (8th Cir. 2005), and that "the FMLA doe snot provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment's notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement." Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 853 (8th Cir. 2002).

Because Wisbey requested "intermittent leave" for "six months or longer," the Court concluded that she did not have a right to FMLA leave. Without the right to FMLA leave, the City "could not have interfered with Wisbey's rights under the FMLA." The Court also rejected Wisbey's FMLA retaliation claim, finding that the decision to terminate her was not casually related to her request for FMLA leave a month before, but was due to the results of the FFD.

Comment: Long-term intermittent absences with little predictability or notice is the bane of employers who need employees present to get the work done. Of course, from the perspective of the employee who needs intermittent leave due to their own serious health condition or to care for a family member with a serious health condition, this is why the FMLA exits- to protect the employee from having to make a choice between their job and caring for their own or a family members medical needs.

For my money, the Eighth Circuit went too far by stating that an employee who needs intermittent FMLA leave for "6 months or more" somehow forfeits the right to take FMLA leave. The statement is flat out wrong. If an eligible employee meets all of the criteria, the FMLA affords the employee the right to take up to 12 weeks of intermittent FMLA leave for their own serious health condition, or the serious health condition of a covered family member, over the course of a 12-month leave year. Except perhaps in the Eighth Circuit, an employer that denied an eligible employee intermittent FMLA leave after six months - even though they have a certification stating that they needed intermittent leave for more than six months - relying on Wisbey would, in my estimation, interfere with that employee's FMLA rights. That could cost the employer big time in an FMLA interference suit.

What employers should take away from Wisbey is that an employee who needs intermittent FMLA leave long-term or forever may not be qualified for their position. Obviously, this will depend on the job duties of the position, including whether regular and predictable attendance is required. If they are not fit for the position because of their FMLA-covered condition, employers do not have to continue to employ the individual. The fact that, if employed, the individual would have the right to take intermittent FMLA leave is not controlling. Think of it this way: the FMLA entitles an employee to leave. If the same FMLA covered-condition that entitles an employee to take leave also interferes with the employees ability to adequately perform their job when they are at work, the FMLA does not protect the employee from discipline for poor performance for the job they did when at work.

Employers would be well-advised to proceed with caution in applying Wisbey. Other courts may less quick to find that an employee needing intermittent FMLA leave is unfit for duty and, therefore, may be terminated -particularly where the employee has not exhausted his or her annual entitlement to FMLA leave.